The Sydow v. Sydow case represents an interesting circumstance where an obligation incurred in Temporary Orders was not extinguished by the subsequent MSA or final decree. Under the temporary orders, the husband Michael was ordered to pay the expenses (insurance, HOA fees, and taxes) of a condominium unit occupied by the mother, Kelli. It is important to note that Michael had negotiated the rental agreement without Kelli’s involvement. In fact, Kelli testified that she thought they owned the unit. Michael stopped paying the expenses and Kelli and their minor child were evicted.

A month after the eviction, the parties signed an MSA. The MSA signed by the parties did not reference the condo expenses but did state that any and all undisclosed and undivided community liabilities would be paid by the party who incurred the liability. Similarly, the final decree did not explicitly refer to the condo expenses but required the party who incurred a liability during the marriage to pay it.

Michael filed a motion to clarify, asking the court to compel Kelli to pay the condo expenses. The trial court complied and ordered the decree clarified to award the condo expenses to Kelli. The trial court based its decision, in part, on the conclusions that Kelli had exclusive use and possession of the condo until she was evicted and that the final decree superseded all liabilities and obligations imposed on either party by the temporary orders. Kelli appealed, arguing the condo expenses were incurred during the marriage by way of the temporary orders, remained Michael’s liabilities under the final decree, and that the clarification order impermissibly altered the division by shifting those obligations to Kelli. Michael argued that the temporary orders were superseded by the MSA, rendering them of of no force or effect and, specifically, releasing him from any obligation to pay the condo expenses. The MSA includes language that it “shall be effective immediately as a contract, shall supersede any temporary orders or other agreements of the parties with respect to the subject matter hereof.” Kelli contended the MSA only relieved the parties of future obligations imposed by the TO, but not past obligations that had already accrued; because there was no order relieving Michael of his prior obligations under the TO, the condo expenses were obligations incurred under the TO and survived the MSA and final decree. The Court of Appeals agreed, finding “it is apparent that the parties agreed that the MSA replaced or took the place of the Temporary Orders as of the MSA’s effective date, thereby terminating any future or continuing obligations imposed by the Temporary Orders.” Further the MSA did not explicitly set aside or nullify any prior obligations imposed by the Temporary Orders and caselaw holds that a final divorce decree “supersedes” temporary orders but does not extinguish liabilities that have already accrued thereunder. Thus, because the final decree and MSA did not alter or discharge Michael of his obligation to pay the condo expenses, the Court of Appeals found the trial court’s clarification void and dismissed the appeal for want of jurisdiction.

Let this be a cautionary tale to those who think that an MSA or final decree will categorically replace the temporary orders. Unless specifically extinguished, debts incurred by a party prior to an MSA or final decree can survive.

Morris v. O’Neal is a bill of review case which once again illustrates the dangers of an incomplete record. Parents Morris and O’Neal entered into an MSA to resolve a modification suit which resulted in the trial court signing a final order modifying P&A. Three months later, O’Neal filed a motion for judgment nunc pro tunc, asking the court to modify the final order to include provisions for long distance access and visitation which O’Neal claimed was the central reason for the parties’ mediated agreement. (This begs the question, if it was the central reason, how did it not make it into the final order?) The trial court signed the JNPT, including the terms for long-distance access and visitation but also omitting certain other terms that were contained in the original order. A year later, Morris filed a bill of review to set aside the JNPT, alleging that the JNPT corrected a judicial error after the expiration of the court’s plenary power and was void. Morris alleged he didn’t find out about the JNPT until after the time to appeal had passed. The trial court denied the bill of review and Morris appealed.

In his first issue, Morris argued the trial court erred by denying him an evidentiary hearing or denying him the opportunity to amend his pleadings. But there was nothing in the record showing Morris ever raised these purported errors to the trial court: no hearings, no oral objections, and no motions alleging a procedural defect. The Court of Appeals held he waived this purported error.

In his second issue, Morris argued the trial court erred in denying the bill of review on the merits. Specifically, Morris claimed that the JNPT was a judicial correction beyond the scope of nunc pro tunc. The Court of Appeals noted, however, that the only evidence in the record presented by Morris to the trial court was a certified copy of the JNPT attached as an exhibit to his petition for bill of review. Morris did not present a copy of the trial court’s original final order with his petition or subsequent bench brief, which would be necessary to demonstrate the interval of time and substantive changes between the orders to raise the possibility that the JNPT was void. Morris referenced certain details about the original final order in his petition and subsequent bench brief, but that is not evidence, the court says. Nor did Morris ask the trial court to take judicial notice of the original final order. Though Morris included the original final order as a supplement to the clerk’s record, the Court of Appeals declined to consider evidence that wasn’t before the trial court when it determined whether Morris had presented prima facie proof of a meritorious ground for appeal.

Finally, the Court of Appeals noted that even if it considered the final order, it still could not conclude that the JNPT was void because there is an unresolved fact question as to whether the trial court rendered judgment on O’Neal’s petition to modify prior to signing the original final order. O’Neal submitted some evidence of a rendition by the trial court prior to the signing of the original final order, but there was no evidence otherwise. Thus the Court of Appeals affirmed the denial of the bill of review.

The Fourteenth’s Morris v. O’Neal is an interesting contrast to the First’s bill of review decision from last month, Barnes v. Deadrick, No. 01-14-00271-CV (Tex.App.–Houston [1st Dist.], Mar. 17, 2015) (which I blogged about here). In both cases, the questions turned on the completeness of the record. But Barnes broke in favor of the bill of review plaintiff, unlike in Morris.